ABCMR Memorandum of                                                             AR2002076309
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           3 April 2003                   
	DOCKET NUMBER:   AR2002076309

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

| Mr. Carl W. S. Chun | | Director
| Mrs. Carolyn G. Wade | | Analyst

  The following members, a quorum, were present:

| Mr. Samuel A. Crumpler | | Chairperson
| Mr. Roger W. Able | | Member
| Mr. Patrick H. McGann, Jr. | | Member

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his bad conduct discharge (BCD) be upgraded to honorable.

APPLICANT STATES:  That he enlisted in the Army at the age of 17 years to get away from home and live on his own.  He states that when he entered the service, he did not have a high school diploma, but he earned his General Equivalency Diploma (GED) prior to going to Vietnam.  He served for 1 year in Vietnam and was not ready for what was in store for him there; he saw, and was involved in, the killing of human beings for the first time, an experience that was difficult for him to handle mentally.  He states that he does not believe that the charges that led to his court-martial were proper.  He states that he was not absent without leave (AWOL) from guard duty.  He believes that he was only partially to blame for the specification of communicating a threat to a noncommissioned officer (NCO) because he and his NCO were both stressed from combat.  He believes that he should be awarded an honorable discharge for the time he spent in Vietnam defending this country and for the Post Traumatic Stress Disorder (PTSD) that he suffers on a daily basis.  He states that he is unable to keep a steady job for more than 2 years; that he has served 5 years in prison for armed robbery; that he was charged with assault, but entered a plea agreement to resolve the case; and that he has contended with substance abuse most of his life since discharge.  He states he has enrolled into a program that focuses on substance abuse and helping people put their life back together.

In support of his application, the applicant submitted a statement in his own behalf; a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); a psycho/social evaluation, dated 15 March 1983; 7 pages of excerpts from his intermittent counseling record at the Veterans Center dating from October 1986 through 10 February 2000, of which he attended 7 counseling sessions; DA Form 47 (Record of Induction); DA Form 20B (Insert sheet to DA Form 20 – Record of Court-Martial Conviction); and a letter from the Veterans of Foreign Wars, dated 18June 2002, forwarding the applicant’s case to this Board.

COUNSEL CONTENDS:  That there is an equity issue because receiving a BCD for twice failing to go to your appointed place of duty and communicating a threat was too harsh a punishment.  Counsel requests that the Board take into consideration that the applicant is a combat veteran.

EVIDENCE OF RECORD:  The applicant's military records show:

He was inducted into the Army of the United States on 18 June 1970 for a period of 2 years.  At the time of enlistment, the applicant was 17 years old and had completed 10 years of formal schooling.  On 6 October 1970, while in advanced individual training, the applicant accepted nonjudicial punishment for departing his unit absent without leave (AWOL) on 6 October 1970 and remaining absent until 8 October 1970.  His punishment consisted of forfeiture of $50.00 pay per month for 2 months, 30 days’ restriction, and 20 days’ extra duty.  Following all military training, the applicant was awarded military occupational specialty (MOS) 11B, Light Weapons Infantryman, and was assigned to Vietnam.  

The applicant arrived in Vietnam on 6 January 1971 and was assigned to Company E, 1st Battalion, 27th Infantry, 2nd Brigade, 25th Infantry Division.  While out on patrol, the applicant’s comrade and friend was injured and later died.  Subsequently, the applicant was referred to a psychiatrist for assistance in dealing with the death.  The applicant indicates that it was shortly after this incident that he started to use heroin.

The applicant was transferred on/about 15 March 1971 to Headquarters and Headquarters Company, 1st Battalion, 501st Infantry (Airmobile).  While out on patrol, the applicant became ill and a medic, while moving to treat him, stepped on a mine and lost his foot.  The applicant indicates that, after this incident, he was ostracized and harassed by the members of his unit.

On 20 September 1971, the applicant, without authority, failed to report to his appointed place of duty.

On 21 September 1971, the applicant again failed to report to his appointed place of duty and also communicated to his commissioned officer a threat to kill his noncommissioned officer.

On 23 September 1971, the applicant was charged with two specifications of failing to go to his appointed place of duty at the appointed time, to wit: bunker guard briefing and formation.  He was also charged with one specification of wrongfully communicating to his commissioned officer a threat to kill his noncommissioned officer.

On 18 October 1971, the applicant, appearing before a military judge only, pled guilty to the charge of failing to be at his appointed place of duty at the appointed time and not guilty to the charge of communicating a threat.  He was convicted by a special court-martial for the above charges and was sentenced to a BCD, 6 months’ confinement, and reduction to private/E-1.  The sentence was approved on 2 December 1971.  The court also recommended that upon completion of the applicant’s period of confinement, the appropriate authorities place him on excess leave and transfer him back to the United States until the appellate review was completed.

On 22 February 1972, the applicant underwent a separation physical.  There is no indication in Block 42 of the Report of Medical Examination that the applicant was suffering from any psychiatric problem or mental distress at that time; he was cleared for separation.

On 10 April 1972, the applicant, through his counsel, requested that the United States Army Court of Military Review reconsider the sentence and approve no sentence which included a BCD.  On 14 April 1972, the court affirmed the sentence as adjudged.

On 23 May 1972, the applicant petitioned the United States Court of Military Appeals for a grant of review.  On 23 July 1972, the court denied the applicant’s petition.

On 14 August 1972, the sentence, having been affirmed, was ordered executed. The portion of the sentence pertaining to confinement had been served.

On 27 September 1972, the applicant was discharged under the provisions of Army Regulation 635-200 with a BCD.  He was credited with 1 year, 9 months, and 27 days of creditable military service and 167 days of lost time due to confinement.

Army Regulation 635-200, then in effect, stated that an enlisted person would be discharged with a BCD pursuant only to an approved sentence of a general or special court-martial imposing a BCD.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  While the Board has taken cognizance of the applicant's age at the time, the Board noted that the applicant met entrance qualification standards, to include age.  The Board further found no evidence that the applicant was any less mature than other soldiers of the same age who successfully completed military service.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The Board considered the applicant's overall quality of service, the events that precipitated the discharge, and available evidence related to post-service activities and accomplishments.  The Board determined that the applicant’s overall service record and post-service conduct were not sufficiently mitigating to upgrade his discharge.  The Board concluded that clemency is not warranted.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__sac___  __rwa___  __phm___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID | AR2002076309
SUFFIX |
RECON |
DATE BOARDED | 20030403
TYPE OF DISCHARGE | BCD
DATE OF DISCHARGE | 19720927
DISCHARGE AUTHORITY | AR 635-200
DISCHARGE REASON |
BOARD DECISION | (DENY)
REVIEW AUTHORITY |
ISSUES         1. | 105.0100
2. |
3. |
4. |
5. |
6. |